Thursday, July 30, 2009

Boston cop Justin Barrett does not believe that Henry Louis Gates received enough punishment for criticizing James Crowley, the Cambridge police officer who arrested the Harvard University professor after mistakenly believing Gates was burglarizing his own home. Barrett says that the outcome of the incident would have differed had he been on the scene:

[I]f I was the officer he verbally assaulted like a banana-eating jungle monkey, I would have sprayed him in the face with OC [oleoresin caseinate aka pepper gas] deserving of his belligerent non-compliance.

Barrett made his comments in a very angry email he sent to Yvonne Abraham, a Boston Globe columnist who wrote an article that criticizes the arrest of Gates. The concluding language of Barrett's email states that Abraham's article should be called: "CONDUCT UNBECOMING A JUNGLE MONKEY –BACK TO ONE'S ROOTS."

In Complete DenialDespite his blatantly racist rant, Barrett denied being a racist in the email and in a formal statement he released today after the Boston police commissioner suspended him. Apparently, Barrett could lose his job.

Barrett's attorney, Peter Marano, is apparently in deeper denial than his client. Marano says that critics have taken Barrett's comments out of context and that Barrett did not call Gates a "banana-eating jungle mon,ey." Marano says that Barrett only criticized Gates for acting like a "banana-eating jungle monkey." Thanks for clearing up the misunderstanding.

Question I:How many times has Barrett used this type of language to describe the behavior of whites?

Questions II and III: Imagine that Barrett never sent the email or made similar statements publicly. Under those circumstances, if Barrett had used pepper spray on an innocent black man who protested his treatment by officers without violence, would many people have believed that racism influenced his behavior? How would that situation differ from the Gates incident (other than the use of pepper spray)?

A week ago, the news circuit was ablaze over the arrest of Harvard University Professor Henry Louis Gates, a black man who teaches in the school's African and African American Studies department. Cambridge police arrested Gates after a neighbor called 911 to report a possible, though uncertain, burglary at his home. It turns out that Gates had to enter his home forcibly due to a malfunctioning lock on his front door. Despite identifying himself as the lawful occupant of the house, police initially did not believe him and subjected him to great scrutiny. After Gates protested his treatment, Officer James Crowley arrested him for "disorderly conduct."

Crowley said that he acted responsibly because the 911 caller said a "black man" was attempting to break into the home and that he only arrested Gates after he started behaving badly. The 911 tape, however, does not comport with the officer's description, and the caller has come forward to deny making a racial identification.

The District Attorney subsequently dropped the charge against Gates "in the interest of justice." Also, in a joint statement, the city and police department described the incident as "regrettable and unfortunate."

Two Unlikely Race MenThe arrest of Gates has led to a national conversation about race. Many commentators believe that race shaped the outcome of the scenario and that the arrest was another example of racial profiling. Others, however, dismissed this narrative and argued that police did nothing wrong when they responded to the 911 call or when they arrested Gates.

Upon reading some of the early articles regarding Gates' arrest, I felt that much of the analysis suggested that Gates -- an elite professor -- sustained an even greater injury from alleged racial profiling than poor and middle-class blacks who could inevitably detail numerous encounters they have experienced with police officers. I have discussed several of my own encounters with colleagues since the Gates incident. Being a law professor, however, does not make those moments worse. In fact, I probably escaped a lot of injury because I am both a lawyer and professor.

GatesAlthough the incident has led to commentary regarding race, Gates is an unlikely symbol of racial protest. While Gates teaches in a race studies program, his work has focused much more on examining the historical aspects of black art, rather than examining issues of racial inequality and injustice (Note: I recognize that black artists have often focused on racial inequality). Gates shies away from controversial and socially damning commentary, which undoubtedly makes him attractive to faculty members at the numerous elite institutions where he has taught.

Many black men, most recently Colin Powell, have argued that they have learned to become extraordinarily humble in the presence of police in order to avoid an arrest -- or even worse outcomes. Although I believe that the First Amendment gives all of us the right to harangue cops, the Constitution has failed to prevent many angry cops from engaging in abusive and racially discriminatory behavior. Many whites report that they too submit to cops, but for black men, humility can mean life or death. It does not carry such stark choices for whites.

ObamaDuring a press conference on health care last week, a reporter asked Obama to comment on the arrest of Gates. In response, Obama said Crowley acted "stupidly." While I would not have chosen that word to describe Crowley's behavior (I can never imagine a situation requiring that I turn "stupid" into an adverb), the president's conclusion was not beyond the realm of reasonable commentary.

In fact, Obama was somewhat guarded, given the circumstances. The police arrested Gates after responding to a call that suggested someone could have been burglarizing his own home. Gates was arrested for protesting his treatment by the cops too zealously. But "protesting" police behavior is not a crime. Indeed, the Massachusetts Supreme Judicial Court has placed severe limits on the state's ability to enforce the "disorderly conduct" statute, given the First Amendment issues it implicates. Furthermore, the city and police department described the arrest as "regrettable and unfortunate," which suggests that it was not a reasonable outcome under the circumstances. Finally, the District Attorney sought dismissal of the charge "in the interest of justice." Given these reactions and the First Amendment, one could reasonably (even if inartfully) argue that Crowley acted "stupidly."

When Obama initially discussed the Gates incident, he did not accuse Crowley of racial motivation. Instead, he spoke about race in an abstract manner, saying that "racial profiling" continues and that he had sponsored legislation in Illinois to stop the practice. Obama's tepid racial analysis mirrors his general strategy on race. President Obama has sought to invoke race in ways that are ceremonial (e.g., celebrating MLK's birthday) or abstract (saying "we" all need to do better on race or that "racial profiling" still occurs). At the same time, Obama seeks to remain very distant from the thorny subject of racial politics (such as affirmative action) which causes discomfort among many whites.

During the presidential campaign, many of Obama's supporters and members of the news media (who were often indistinguishable), described him as a "post-racial" candidate. That description, however, ignores that subtle ways in which Obama used race to his advantage (e.g., emphasizing the "historic" nature of his campaign and downplaying race to comfort whites).

Despite his racial tightrope walk, Obama's comments regarding the Gates incident sparked controversy. Some commentators argued that he should not have placed blame with Crowley, arguing that Gates could have overreacted to the situation, causing his arrest. Some dismissed the relevance of race altogether. Others criticized Obama even as they openly praised racial profiling as a law enforcement tool.

Faced with criticism (which he seems to hate and want to avoid like the plague) on an issue (race) that he wants to ignore whenever possible, Obama backpedaled -- to such a degree that he invited both Gates and Crowley to the White House for a beer. Both individuals accepted, and tonight, the three men will come together for some hops.

Jake Tapper of ABC News has posted some interesting information on his blog that makes the presidential happy hour even more farcical than it already is: "The president, we are told, will be drinking Bud Light, Crowley will have Blue Moon, and Gates will have Red Stripe -- Red Light and Blue." Bleh.

My TakeGates absolutely had the right to protest the incident, and I believe that race probably factored into his arrest. Once Crowley (finally) accepted the fact that Gates was not a burglar, he should have simply left the scene. But the "uppity" Gates harangued him, which by the officer's own admission led to the arrest. That race could have influenced the officer's conduct does not make him an awful or incompetent individual. Instead, it demonstrates the subtle or unconscious operation of race, even among generally well meaning individuals.

Gender probably mattered as well. The battle between two men - one black, the other white -- over "public dignity" and power is a classic one.

Regardless of whether race was a factor, I agree that the officer acted inappropriately in arresting Gates (so ignore the race angle if it bothers you). The First Amendment permits all of us to criticize cops, especially on political issues such as racial justice. Despite this fact, the President will chug a brew with both Gates and Crowley in order to make everyone "get along" after he almost talked about race. Perhaps the trio will exchange a few manly slaps on each others' arms and share "high fives" as they laugh the regrettable and unfortunate incident right out of their hair.

Obama will likely escape the messy racial thicket that he has spent a lot of time and energy avoiding. And while his backpedaling on this issue might help him politically, it does not give serious treatment to the important issue of race in our society. Consequently, the president's behavior is regrettable and unfortunate.

Several Senators want states to ban TWD: Texting While Driving. Citing to studies which indicate that drivers who send text messages while driving pose a greater risk of traffic accidents, four Democrats have introduced a bill that might effectively lead to a "national" ban on TWD.

The proposed measure, introduced by Democratic Senators Schumer, Landrieu, Menedez, and Hagan, would deprive states of federal highway funds if they did not ban TWD within 2 years. Each year without a TWD ban would cost a state 25% of its federal highway funds. Fourteen states have already banned TWD.

My Thoughts: States versus CongressAlthough I strongly support federal involvement in very important issues, this matter seems a bit odd to me. The measure is simply a "national" traffic law tied to the use of federal highway assistance.

Nevertheless, the measure, if passed, would not violate the Constitution (at least from what I have read about the bill). While the conservative Supreme Court has significantly curtailed the ability of Congress to regulate the states, it has not substantially limited the power of Congress to impose regulatory duties upon the states via the Spending Power. Indeed, there are no free lunches.

Congress has the constitutional authority to spend, and it has used this power to shape policies in the states -- and to establish national policy. With respect to highway funds, the "national" 21-year-old drinking age results from a federal law that would deprive noncomplying states of highway assistance. Medicare, Medicaid, unemployment insurance and other federally funded programs also provide money to and impose requirements upon states.

Congress used the Spending Power to accelerate the pace of racial integration in public schools when it passed the Civil Rights Act of 1964. The law contains a provision that bans the use of federal money in a manner that discriminates on the basis of race. Until the passage of this law (ten years after Brown v. Board of Education), most schools remained completely segregated in the South.

Banning TWD seems like a brilliant idea for a state to implement. Perhaps Congress should let the states take the lead, however. Where important rights or vital national interests are at stake, I fully support the use of the Spending Power (and Court doctrine) to accomplish national standards. But this measure seems to jump ahead of the states at a time when Congress certainly has more pressing issues to discuss.

Thursday, July 23, 2009

The Boston Herald has published an article that implies James Crowley, the officer in the center of controversy over the arrest of Professor Henry Louis Gates, cannot be a racist because he gave "mouth-to-mouth resuscitation" to deceased Celtics basketball star Reggie Lewis in a failed effort to save his life. I assume for the sake of argument that Gates's arrest was unrelated to racism. The fact that Crowley tried to save one black man's life, however, does not negate the possibility that he is a racist.

Discrimination and ComplexityRacism, like all other "isms," operates with a level of complexity that the Boston Herald article fails to appreciate. During Jim Crow, whites in the South flocked to watch black artists perform -- even though local laws would not permit them to dine at the same restaurants, stay in the hotels or to marry. During slavery, many white male slave owners did more than place their lips on black women, and they fathered many children, whom they subsequently enslaved. Similarly, one of the officers who was involved in the violent act of ramming a plunger in the anus of Abner Louima denied that he was a racist because he was in a relationship with a black woman. And one of the oldest expressions, "I don't think of you as black" reveals the psychology of a white person who normally "thinks of blacks as blacks" but who creates exceptions to this rule.

The same complicated behavior exists with respect to other forms of discrimination. Virulently sexist men claim to "love" their wives, mothers, sisters, and daughters. Also, some of the most homophobic people learn to embrace and defend their gay or lesbian children. This behavior undermines the central theme of the Boston Herald article. Regardless of whether the officer's actions were motivated by race, this article does nothing to resolve the question.

Note: Even the conservatives on the Supreme Court have not obliterated a longstanding doctrine in civil rights cases which establishes that an employer cannot disprove an allegation of discrimination by arguing that it treated other persons in the same class fairly.

Last week, Cambridge, Massachusetts police arrested Henry Louis Gates, a professor at Harvard University. The police were responding to a call from Gates's neighbors who believed that someone was trying to break into his home. Police arrived and found Gates at home. Apparently, Gates had to force his way into the home because his key would not open a damaged door lock. Gates produced identification establishing his identity, but police initially refused to believe him. After Gates protested the situation, police arrested him for "disorderly conduct." The charge was subsequently dropped.

Obama's ReactionDuring Wednesday's press conference, President Obama responded to a question related to the arrest. Here is a transcript of his comments:

QUESTION: Thank you, Mr. President. Recently, Professor Henry Louis Gates, Jr., was arrested at his home in Cambridge. What does that incident say to you and what does it say about race relations in America?

OBAMA: Well, I should say at the outset that Skip Gates is a friend, so I may be a little biased here. I don’t know all the facts. What’s been reported though is that the guy forgot his keys, jimmied his way to get into the house. There was a report called in to the police station that there might be a burglary taking place. So far, so good,right? I mean, if I was trying to jigger into -- well, I guess this is my house now, so...

(LAUGHTER)

... it probably wouldn’t happen. But let’s say my old house in Chicago.

(LAUGHTER)

Here, I’d get shot.

(LAUGHTER)

But so far, so good. They’re -- they’re reporting. The police are doing what they should. There’s a call. They go investigate what happens.

My understanding is, at that point, Professor Gates is already in his house. The police officer comes in. I’m sure there’s some exchange of words. But my understanding is, is that Professor Gates then shows his I.D. to show that this is his house and, at that point, he gets arrested for disorderly conduct, charges which are later dropped.

Now, I don’t know, not having been there and not seeing all the facts, what role race played in that. But I think it’s fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home; and, number three, what I think we know separate and apart from this incident is that there’s a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. That’s just a fact.

As you know, Lynn, when I was in the state legislature in Illinois, we worked on a racial profiling bill because there was indisputable evidence that blacks and Hispanics were being stopped disproportionately. And that is a sign, an example of how, you know, race remains a factor in the society.

That doesn’t lessen the incredible progress that has been made. I am standing here as testimony to the progress that’s been made. And yet the fact of the matter is, is that, you know, this still haunts us.

And even when there are honest misunderstandings, the fact that blacks and Hispanics are picked up more frequently and often time for no cause casts suspicion even when there is good cause.

And that’s why I think the more that we’re working with local law enforcement to improve policing techniques so that we’re eliminating potential bias, the safer everybody is going to be. All right? Thank you, everybody.

The Responses from the RightCommentary regarding Obama's statements regarding Gates's arrest are just emerging, but many conservatives have questioned Obama's position. Here are some of the conservative responses.

William KristolConservative William Kristol believes that Obama should not have "attacked" the police for behaving "stupidly":

Does [Obama] really know enough about what happened to say that? Maybe it was Professor Gates who behaved stupidly, or at least arrogantly. He is, after all, a Harvard professor. I was once a Harvard professor, and my instinct is to side with the Cambridge cops.

William A. JacobsonConservative blogger William A. Jacobson takes issue with Obama's description of the arrest and argues that Gates sealed his own fate with his "verbal assault" on the police:

Gates wasn't arrested for being in his own home. He was arrested after police reacted -- maybe overreacted -- to Gates' verbal assault on the police. Obama's statement did not leave open the possibility that Gates caused the problem not by being in his home, but by overreacting to police officers investigating a complaint of a burglary in progress.

American Power BlogAnd the immensely conservative blog American Power defends the police activity by defending the general use of racial profiling and describing Gates as a belligerent:

[Black] dudes commit the most crimes, and profiling is perfectly legitimate as a crimefighting tool when the odds are that a certain demographic is prone to particular types of criminal activity. I frankly can understand the fears of people flying cross-continental airliners when they see Middle Eastern and Muslim passengers on board. Individuals from those groups have committed the most heinous crimes on Americans. Fear and worry when "profiling" people like that makes sense.

That may be politically incorrect. But take that away, and we're left with Henry Louis Gates' belligerence, which included the comeback, "I'll speak with your mama outside," when the policeman requested that Gates step outside.

[Editor's Note: This is way beyond "politically incorrect." Compared with this, KKK literature is "politically incorrect."]

The blog also contends that Obama's comments reflect the fact that he is a "Harvard-trained radical."

My ReactionObama's comments characteristically give a little to the left, right and middle in an effort to appear balanced and moderate. Obama concedes that Gates is a "friend." He states that he does not know all of the facts. He admits that the parties probably exchanged some tough words. He praises progress in United States race relations. He does not say that race motivated the police -- a charge the most whites are reluctant to believe about police. He speaks about race in an abstract fashion, detached from the question at hand, mentioning only the history of race in the United States and his work on "racial profiling" as an Illinois legislator. Finally, he puts in a good word for all of the honest cops who simply do their work without engaging in racial profiling.

It is really difficult to disagree with these comments. There is a history of racial profiling, which continues today. Also, the city and the police department officially stated that the situation was "regrettable and unfortunate." Although I suppose that rational or intelligent (as opposed to "stupid") behavior could lead to "regrettable and unfortunate" results, in this context the official statement reads like a subtly worded admission of wrongdoing (or stupidity). Furthermore, the District Attorney has declined to prosecute the case "in the interests of justice," which again suggests an admission of impropriety (not simply a generalized exercise of discretion not to prosecute).

Jacobson, however, faults Obama for not leaving open the possibility that Gates overreacted, which led to his arrest. Jacobson contends that most people would not yell at police, and that Gates sealed his own fate by not following this general pattern. First, the official statement from the city and police department counters Jacobson's effort to place blame with Gates. Furthermore, although Jacobson's description of how people react to cops is probably accurate, I take issue with the implication that cops should be able to make arrests or act out of racial biases (or both) without passionate verbal protests.

Police officers frequently arrest people who "take issue" with the officers' behavior and after the individuals demand identification, badge numbers, etc. Gates stated that he was only arrested after he demanded such information and criticized the officers. Verbal protests and requests for information, however, should not justify an arrest. The First Amendment gives people a right to question police. It also allows people to protest racism. Furthermore, the laws in many jurisdictions actually require police to disclose their badge numbers and names to individuals subject to an interrogation or arrest. When people ask for this information or simply "bad mouth" cops, this does not constitute disorderly conduct. Law enforcement officers are not above the law or criticism.

While some people might escape arrest if they remain silent in the wake of police misconduct, the law does not mandate this approach. Anger is a very natural response to racism, perceived and otherwise. And while whites have probably been arrested for protesting police conduct, I doubt that many whites have been suspected of burglarizing their own homes. This point, however, is noticeably absent in many of the critiques of Obama's statements. Being a suspect at home is aggravating enough. Being a suspect at home due to racism is infuriating. Being arrested for "disorderly conduct" after becoming infuriated and expressing this anger does not remove race from the equation. Instead, an arrest under these circumstances actually centralizes the subject of race.

Monday, July 20, 2009

Ross Douthat's op-ed on race, published in the New York Times, reads like a piece of science fiction. Although Douthat makes well worn arguments about the perils of affirmative action, his ultimate conclusion that class-based measures should replace race in social policy rests on a description of America's near future that is utter fantasy.

Racial ExhaustionDouthat frames his essay around Justice O'Connor's opinion for the Court in a 2006 case that upheld the use of race-based affirmative action in higher education. Near the end of the opinion, O'Connor expresses a hope that in 25 years, affirmative action would be unnecessary. Douthat agrees with O'Connor's sentiment.

But that decision was not the first time the Supreme Court fantasized about the diminishing need for race-based public policy. The first judicial expression of this mistaken view occurred in an 1883 opinion that invalidated the first federal statute banning racial discrimination in places of public accommodation. In the face of dramatic racial inequality, the Court opined that ongoing measures to address racial inequality were no longer necessary and that these provisions were simply handouts that made blacks the "special favorites of the law."

Similarly, immediately after the Civil War, conservative members of Congress contested policies designed to provide food, shelter, and protection to the former slaves on the grounds that the war and the abolition of slavery had ended the nation's racial issues and that these policies harmed whites and made blacks lazy. Racial exhaustion rhetoric (see my recent law review article on the subject) has existed throughout the history of the United States. It is unclear why Douthat believes his plea for the end of race-based measures sits outside of this long history of racial denial.

Obama's and Sotomayor's AmericaDouthat notes that some critics have argued that Sonia Sotomayor's treatment by conservatives proves the salience of race in the United States. In response, Douthat asserts that:

[T]he [Republican] senators are yesterday’s men. The America of Jefferson Beauregard Sessions III is swiftly giving way to the America of Sonia Maria Sotomayor and Barack Hussein Obama.

And just where are all of these budding black presidents and wise Latina Supreme Court justices? According to Douthat, they are the inevitable consequence of population increases among persons of color and the likely nonwhite "national majority" by 2042. Numbers alone, however, do not translate into material well being or even political power (just ask South Africans -- or poor Latinos in Texas). And having a black President and a Latina on the Supreme Court does not mean that race has become socially irrelevant. Oprah Winfrey, a black woman, is one of the richest persons in the world. Under Douthat's individualized approach to the question of inequality, women of color should have indisputable economic power. Instead, they are the poorest segment of the United States population.

Furthermore, Sotomayor and Obama both benefited from affirmative action. According to Douthat, however, their great success disproves, rather than proves, the necessity of race-based affirmative action.

Race "or" ClassDouthat makes a valid point regarding the importance of class-based remedies. But the class proponents (Douthat is not the first) never justify their "either/or" formulation. Most sociological data on the subject, however, indicate that race and class both shape the experiences of the nation's poor persons of color. And while they would certainly benefit from economic policies (see William Julius Wilson's "When Work Disappears") the persistence of poverty among persons of color results from more than race or class alone.

The proponents of the class approach also ignore the significant public hostility to anti-poverty policies and the fact that "programs for the poor" often morph into "programs for lazy and undeserving blacks and Latinos" in public discourse. According to very popular political rhetoric, undeserving black and Latino "subprime" mortgage-holders singlehandedly caused the global economic and financial crisis. Also, "welfare" supposedly ruins the economy because it leads black women to have more children than they can afford, mistakenly believing that an extra 100 bucks a month is worth the hassle. Although most women who receive welfare are white, they are largely invisible in conservative discourse.

Even in the area of public education, where class-based policies could have a tremendous impact, the political will for egalitarian measures is not strong enough. For example, despite the inequities that result from using property taxes to fund public schools, most states continue to utilize this approach, which the Supreme Court validated in 1973.

The conditions in public schools also counsel against an approach that attempts to separate race from class. Public schools have become highly "resegregated" in the last decade. Schools that have largely black and Latino student populations are also "poverty schools," while schools with predominately white student populations are likely middle-class and higher-income schools. The race-poverty schools are grossly underfunded, are revolving doors for teachers, and they rank at the bottom in most measures of pupil success (This has nothing to do with the availability of affirmative action -- as conservatives falsely argue). Due to racial residential segregation, poor students of color are more likely than poor whites to attend poverty schools.

Nevertheless, in 2007, the Court invalidated policies in two school districts, which sought to remedy the harmful effects of resegregation. The majority held that the school assignment policies, which included an innocuous racial "tie-breaker" -- if a long list of other measures failed -- were too broad. The four most conservative justices argued that states did not even have a "compelling interest" in remedying racial isolation in public schools (despite all of the problems that correlate with it). The problem of racially isolated poverty schools is much more severe in "liberal" states in the Northeast, Midwest and West Coast -- despite those states having large populations of persons of color.

ConclusionAlthough Douthat probably formed his views on the subject of race before Obama's election, he seems to read too much into the historical fact of the nation's first black president. He also fails to consider the substantive and political limits of a class-based approach to equality. Douthat also exaggerates the relevance of increasing numbers of persons of color to their overall well being. Accordingly, Douthat's vision of America's near future remains simply that: a vision.

Saturday, July 18, 2009

Walter Cronkite, the legendary CBS News anchor, has died. Cronkite was such a figure during my childhood and even much earlier. It is so hard to explain how the news medium has changed today (in a negative direction). Comparing today's plethora of talking heads with Cronkite is a painful process.

And that's the way it was. . . .Update:Glenn Greenwald has a lot more on how Cronkite's death signals the end of a generation in the news media. I strongly encourage you to read Greenwald's article.

Also, during an interview in 1996, Cronkite himself laments that the current generation of reporters do not abide by the "standards" that his generation tried to implement. The standards, he said, did not "stick." Here's a link to the video footage: Newseum News Cronkite Page.

Friday, July 17, 2009

Last year, I decided that Maureen Dowd had lost her verve. After a litany of weekly essays knifing Hillary Clinton and worshipping Barack Obama, she appeared robotic and unoriginal. But, Dowd's latest essay shows some of her old sparkle. In classic Dowd style, Dowd goes after the Republican Senators who have questioned Supreme Court nominee Sonia Sotomayor's impartiality, temperament, and honesty. Dowd praises Sotomayor for maintaining her cool in the face of hostility, concluding that: "A wise Latina woman with the richness of her experiences would more often than not know that a gaggle of white Republican men afraid of extinction are out to trip her up." Regrettably, I agree.

Prior to the Sotomayor nomination, I published many essays on this blog that defend Republicans from liberal attacks. For example, I defended Michael Steele (here, here, here, and here), Sarah Palin (here, here, here, here, here, here, here, and here), Rush Limbaugh (here and here), and John McCain (here, here, here, and here) from unfair criticism. I also criticized "the liberal media," liberals and Democrats, including President Obama, when other progressives refused to do so (too many links to list). Although I continue to criticize liberals, my search for material to defend the GOP has been largely unsuccessful since the Sotomayor nomination.

The GOP's False and Offensive Anti-Sotomayor NarrativeDespite her excellent academic and professional credentials, many Republicans have decided that she is an intellectual lightweight, a partial judge, a bigot, and an ideologue. Given her nearly 20 years of judging, if these allegations were true, then the hundreds of opinions she has written would back up the claims. Nothing in Sotomayor's record as a judge, however, legitimates the Republicans' allegations.

Lacking any credible proof that Sotomayor is unqualified to sit on the Supreme Court, Republicans have resorted to distortion. They have extracted one case (Ricci) from her long legal career, and despite the fact that several other judges reached the same conclusion as Sotomayor, Republicans have pointed to her position in the case to argue that she is biased against white men.

Republicans have also extracted one sentence from one speech that Sotomayor delivered, distorted its meaning, and have attempted to define Sotomayor with their own misrepresentation of her words. Clearly operating under White House directions, Sotomayor has (wisely) said that she should have chosen other words to convey her message. She even apologized for any pain her words caused (but conservatives oppose "victimology"). Nevertheless, the spewing continues.

Embracing Principles or Committing Political Suicide?Sotomayor will sit on the Supreme Court. All of the Democrats and even some of the Republicans will vote to confirm her. Meanwhile, the Republican Party will likely take a political hit from the hearings -- especially among blacks and Latinos, whose support for the GOP is already in the toilet.

Ironically, Republican Senators like Jeff Sessions are leading the attacks against Sotomayor. President Reagan nominated Sessions for a federal district court judgeship, but his nomination never made it out of the Senate Judiciary Committee. Many committee members were not amused by some of Sessions's prior comments on race, which appear to praise the Ku Klux Klan and which describe the NAACP and ACLU as "un-American." Send in the clowns.

One could argue that the GOP is valiantly embracing its principles in the face of wide opposition and deep political risks. But that argument requires a showing that principles are actually dictating the behavior of Republicans. On that point, the record is weak. Portraying a highly successful woman of color with a long and distinguished judicial record as a dumb shrill racist partisan is not only factually inaccurate, but it amounts to political suicide for a party that needs to capture the attention of women, moderates, and persons of color. Rather than adhering to principles, it seems that the GOP is on a suicide mission. For those of us who favor a multi-party system, this is bad news.

Thursday, July 16, 2009

ESPN columnist LZ Granderson has published an essay on CNN.com that repudiates a slogan that has gained traction among (white) advocates of GLBT rights: "Gay is the new black." Granderson argues that most black gays and lesbians reject the sentiment underlying this phrase, which implies that GLBT people are marginalized like blacks "used" to be.

I have written numerous law review articles and blog entries on the subject of race and GLBT rights (see Google). Accordingly, I had a number of intellectual reactions to Granderson's essay when I first read it. Below, I have catalogued my primary reactions to his commentary. In sum, I find that his article makes some valid points, but Granderson fails to offer a useful and sophisticated analysis of the politics of race and sexual identity.

Gay Is Not the New BlackAlthough the slogan "gay is the new black" is relatively new, the sentiment it expresses is old. GLBT rights advocates have a long history of invoking racial justice and racism in their arguments. In many ways, legal culture encourages the comparisons of racism and heterosexism due to its fascination with precedent. Established doctrine compels lawyers to argue that courts should invalidate antigay policies because discrimination against GLBT people is sufficiently similar to racism.

This argument, however, ignores substantial differences between "GLBT people" and "blacks." Race and class advantage many GLBT people, while inherited inequality and ongoing discrimination continue to constrain persons of color. The analogies do not present this complexity. The comparisons also rest on a factually inaccurate assumption -- that "GLBT people" and "blacks" are distinct categories subject to comparison. Black GLBT people, however, shatter and fatally complicate this assumption.

The pitfalls associated with the analogies, however, do not doom the project of GLBT rights. Nonetheless, in their advocacy many GLBT activists and blacks refuse to acknowledge that homophobia and heterosexism warrant remedial action, notwithstanding the historical or contemporary experiences of blacks with racism. GLBT activists advance the troubling analogies to advocate gay rights, while blacks contest the analogies in order to dismiss gay rights. Despite their differences, both sides remain wedded to the analogies.

Civil rights by analogical reasoning is a bankrupt concept. Even today's blacks have not experienced the same type of racism as, say, slaves, but they still deserve civil rights protection. Holding GLBT people to a different standard is blatantly discriminatory.

The use of analogies in civil rights discourse unnecessarily limits civil rights protection to groups who have "the same" experiences as blacks (when no such group exists), which causes these groups to rely upon the misleading analogies. The analogies also rigidly portray civil rights as inapplicable to harmful social prejudices that do not mimic racism. Racism, however, is not the only form of oppression, and racism does not exist in a vacuum, detached from other types of discrimination. Granderson and other critics of the analogies never justify their narrow approach to equality.

Gay Is Not the New Black, BUT. . . .This Should Not Banish GLBT Rights to ObscurityEven though gay is not the new black, this fact should not banish GLBT rights to obscurity. In addition, this observation cannot excuse or justify liberal politicians' inaction regarding or opposition to gay rights. This holds true even if the liberal politician is President Obama.Granderson portrays GLBT criticism of Obama as coming almost exclusively from whites. Even if this were true (some blacks have indeed criticized Obama on GLBT issues), this does not mean that Obama has acted admirably on GLBT rights, and it does not disturb the fact that he has taken positions that differ from his campaign promises.

Obama created a lot of the excitement in the GLBT activist community with his numerous and sweeping campaign promises to undo blatant antigay discrimination encoded in federal law. But when Obama had his first opportunity to act consistently with his campaign promises, he took the exact opposite position and defended the Defense of Marriage Act as rational legislation -- despite his own assertion on the campaign trail that the law was unfair and that it should be repealed.

Although several commentators overreached in their criticism of the DOMA brief, the official governmental stance on the issue directly contradicts Obama's description of the law during his campaign. And while the Department of Justice normally defends the legality of existing federal law, Obama could have directed the lawyers to concede the issue (which he did in a subsequent case involving discrimination on the basis of gender identity). If Obama did not believe, perhaps reasonably, that defending DOMA would benefit him politically, he would not have done so.

Gay Is Not the New Black, BUT. . .This Does Not Excuse Black Homophobia or Inattention to GLBT Rights Among Liberal PoliticiansGranderson's argument ignores the operation of black homophobia in the lives of black GLBT people. For example, he rightfully condemns white gay racism, but he suggests that this alone explains the existence of separate clubs and pride celebrations along the lines of race within GLBT communities. Although I agree with Granderson on the existence of racism within GLBT communities, racism alone cannot explain the popularity of separate black gay clubs and festivals. Black homophobia plays a role as well.

If the black community was a Utopia where black GLBT people could live their lives openly without fear of reprisal, then, applying Granderson's logic, these separate clubs would not exist apart from other black cultural institutions. This Utopia, however, does not exist. Black homophobia is an important social problem (just like white homophobia). Responding only to racism (but not homophobia, sexism and poverty) paints an incomplete picture.

Granderson also argues that some of Obama's critics seem impatient and unable to appreciate the fact that equality comes from sustained political activity. I agree. But part of this sustained activity must include open criticism, dissent and debate. Frederick Douglass, a leading black abolitionist, was invited to speak at the dedication of Washington, D.C.'s Lincoln Park, which is named in honor of the late President Lincoln. During his speech, Douglass called Lincoln a racist and said that he was a president to whites, not blacks. I suspect that he said even stronger things to Lincoln privately. Regardless, Obama's GLBT critics seem pretty soft in comparison.

Rather than asking GLBT advocates to tone down their criticism to mirror blacks (who largely remain exuberant regarding Obama), I encourage all progressives, including antiracist activists, to treat Obama as a president. His election is imbued with great symbolism, but this does not change the fact that he is a living, breathing politician who will only take risky and tough positions if he is pushed to do so. No progressive social movement in the United States has succeeded by giving politicians, including allies, a free pass. It seems highly unlikely that the GLBT and racial justice movements can defy these odds. Although social movement actors should act strategically, being strategic does not mean accepting complacency and silence.

Stonewall and RaceFinally, Granderson argues that the Stonewall Riots, which many GLBT activists mark as the the beginning of the "gay rights movement," only happened 40 years ago, but that blacks (by comparison) have struggled against racism for much longer. I agree with his assertion that the formal gay rights movement is "younger" than the antiracism movement in the United States. But to the extent that Granderson believes that antigay discrimination only began 40 years ago, his argument fails. Antigay discrimination predated Stonewall (as did pro-gay advocacy).

More importantly, Granderson fails to mention that a substantial number of the participants in the Stonewall Riots were poor people, people of color, and gender non-conforming men and women who were the most vulnerable to the police raids and other abuses. They were tired of waiting and enduring hostility in silence.

Although Stonewall was a moment of racial and gay activism, neither the black (heterosexual) community nor the (white) gay community seems to appreciate its complexity. While Granderson's article comes close to unveiling the richness of gay experience, his failure to confront black homophobia as well as white gay racism leaves many gaping holes in his analysis.

Update: The responses to Granderson are coming in, and the early count suggests that "we are not amused":

LA Times writer Andrew Malcolm reports that members of the Senate Judiciary Committee are "out-talking" Supreme Court nominee Judge Sonia Sotomayor by a 2-1 ratio. Malcolm relies upon a computer generated word count of hearing transcripts.

In fairness to the Senators, however, the Senate Judiciary Committee has 19 members -- a fact that Malcolm conveniently neglects to report. Nevertheless, because the committee members are trying to communicate messages to voters (desired or otherwise), they have decided to do what comes naturally: grandstand. Accordingly, I am not surprised that the committee members are out-talking Sotomayor, a no-nonsense judge. Besides, some of the questions are so asinine (multiple versions of "do you hate guns or white men"), that Sotomayor's answers are probably too long, if anything.

Senate Republicans have rebuked "empathy" among judges as if they were Southern ministers commanding Satan to flee. Today, however, they will contradict their anti-empathy stance by bringing Frank Ricci to testify against Supreme Court nominee Judge Sonia Sotomayor.

Ricci LitigationRicci filed a lawsuit challenging a 2004 decision by the City of New Haven to scrap the results of a test it used to allocate promotions in the fire department. If the city had certified the test results, virtually all of the promotions would have gone to whites. The city decided to discard the test and to develop other promotions criteria. Expert witnesses testified that other methods exist that could identify employees worthy of promotions in a less discriminatory fashion. The city said that it feared litigation under federal law that considers disparate effects relevant to an antidiscrimination claim and that it wanted to diversify the pool of employees receiving promotions.

The District Court ruled against Ricci in 2006, and a 3-judge panel of the Second Circuit Court of Appeals ruled against him in 2008. Sotomayor was a judge on the panel. The full Second Circuit subsequently voted to deny reargument in the case. The Supreme Court recently reversed the lower court rulings.

Although the issues in this case are important, the opinions do not dramatically alter the legal terrain. Nevertheless, the case and its lead plaintiff -- Ricci -- gained notoriety after President Obama nominated Sotomayor to replace the retiring Justice David Souter. Despite the fact that many judges -- including four justices on the Supreme Court -- have disagreed with Ricci, conservatives who oppose Sotomayor have used this case in an effort to define her as a racial extremist. Today, they will continue advancing this inaccurate script by bringing Ricci to testify.

Ricci's Testimony Is a Colossal Waste of TimeRicci's testimony will not add anything to the public's knowledge of Sotomayor's qualifications as a judge. Sotomayor has served as a judge for nearly 20 years, and she has decided numerous cases. Only an examination of her complete record as a judge -- rather than one case scrutinized in isolation -- can allow for a balanced and honest assessment of her qualifications.

Although conservatives are attempting to use Ricci (the case and the man) in order to portray Sotomayor as a white-hating race radical, the SCOTUS blog's review of all of the race cases she has decided shows that this label is absolutely false. Sotomayor has rarely dissented in race discrimination cases, and in the bulk of those cases, she has voted against the plaintiffs (constrained, no doubt, by "bad" cases and conservative precedent). In one of her few dissents, however, she actually voted for a white racist employee who was fired from the New York Police Department after he distributed racist literature. Sotomayor, disagreeing with the other two judges, argued that the dismissal violated the employee's First Amendment rights. For obvious reasons, conservatives have treated this case as if it did not exist.

Ricci's testimony will not provide any useful information for many other reasons. First, as a non-lawyer, his competence to evaluate Sotomayor as a jurist is dubious. Second, because Ricci is a disgruntled litigant, many reasonable people will dismiss his analysis as biased. Finally, Ricci only represents one piece of the puzzle. The City of New Haven, the fire department, the workers of color, and potentially the other judges involved in these decisions could all help shape public perception of the case. But (thankfully) these individuals are not testifying. One side of a story is not the story.

Ricci and EmpathyBecause Ricci's testimony will not contribute to the public's understanding of Sotomayor's fitness to serve on the Supreme Court, Republicans are undoubtedly using him for political purposes. Republicans are exploiting Ricci to turn Sotomayor's hearings into a mini-referendum on affirmative action and race. Ricci, like Joe the Plumber, represents the "beleaguered white male," held down by evil liberal policies. Republicans hope that Ricci will create "empathy" for conservative opposition to affirmative action and embolden its political base (which increasingly consists only of Frank Riccis). Apparently, Ricci, like Joe the Plumber, savors 5-minutes of political fame. Where exactly is that plumber dude today?

PS: Democrats are trotting out a lawyer who litigated a case before Sotomayor. The lawyer represented the prevailing party. Although a lawyer could potentially bring more to the confirmation hearings than a firefighter, this testimony will probably add very little if anything to the discussion of Sotomayor's record.

Tuesday, July 14, 2009

Former President Bill Clinton has "basically" embraced same-sex marriage. Although Clinton once opposed same-sex marriage, during a recent speech in Washington, DC, he said that he is now "basically in support" of it. Nevertheless, while Clinton applauded states that have extended marriage rights to same-sex couples, he asserted that same-sex marriage does not present a "federal question."

My ThoughtsFirst, I find it odd that Clinton says that same-sex marriage does not involve any federal issues when he signed the infamous Defense of Marriage Act into law! DOMA permits states to deny recognition of same-sex marriages performed in and recognized by other states, and it creates a heterosexual definition of marriage for federal regulatory purposes. I would love to hear Clinton wiggle out of his contradictory stances. For the record, the denial of same-sex marriage raises serious equal protection and due process concerns -- which are indisputably "federal" issues.

Finally, although Clinton, Cheney, and Dean have endorsed same-sex marriage, neither 9f the three will likely seek elected office again. Also, while Schumer, Corzine and Dodd still hold office, they represent states that have already legalized same-sex marriage (Connecticut) or that will likely do so in the near future (New York and New Jersey).

Question:Will President Obama change course and support same-sex marriage once he is comfortably beyond the control of voters?

Saturday, July 11, 2009

Think Progress has a story regarding New York Times columnist David Brooks, who made an interesting claim about an unnamed male Republican Senator during an interview on MSNBC. Brooks said:

You know, all three of us spend a lot of time covering politicians and I don’t know about you guys, but in my view, they’re all emotional freaks of one sort or another. They’re guaranteed to invade your personal space, touch you. I sat next to a Republican senator once at dinner and he had his hand on my inner thigh the whole time. I was like, ehh, get me out of here.

Brooks also offered this interesting explanation for the Senator's conduct:

But so, a lot of them spend so much time needing people’s love and yet they are shooting upwards their whole life, they’re not that great in normal human relationships. And so, they’re like freaks, they don’t know how to, they’re lonely. They reach out. I’ve spoken to a lot of young women who are Senate staffers and they’ll have these middle age guys who are sort of in the middle of a mid-life crisis. Emotionally needy, they don’t know how to do it and sort of like these St. Bernards drooling everywhere. And you find a lot of this happens in mid-life and among very powerful people who are extremely lonely.

Interesting. So being "emotionally needy" and "extremely lonely" causes male Senators to lust after their female staffers? I am sure there are other likely explanations. Even men who lack power and who are not lonely or middle-aged like the the thrill of the chase (and, sometimes, the end result).

Question for Brooks:Why did you allow the Senator to keep his hand on your inner thigh during an entire dinner party? I suspect that most people consent to such behavior because they like it, but maybe I'm wrong.

Or maybe Brooks is emotionally needed and extremely lonely too; he is definitely middle-aged. Just thinking out loud. . . .

Update 2: Glenn Reynolds -- the famous Instapundit -- has a possible answer: "I think the simple answer is that the habit of deference to power has become ingrained. . . ." Possibly. Thanks for the link, Glenn (and all of the others)!

As a group of five gay males placed their food orders at a Chico's Tacos in El Paso, Texas, two of them shared a kiss. That kiss prompted security guards to eject them from the restaurant. During the encounter with the guards, one of the patrons called the police, but when officer friendly arrived, he told them to leave as well. According to the El Paso Times, the officer said it was unlawful for "two men or two women to kiss in public" and that he could arrest them for engaging in "homosexual conduct." After the police threatened to arrest the diners, they left.

Can a Restaurant Refuse to Serve Anyone at Will?The reports of this incident indicate that the local police are either ignorant of or grossly indifferent to the relevant law. First, the El Paso Times article quotes a local police officer (without indicating whether he responded to the call), who states that police could have charged the men with "criminal trespass" because:

Every business has the right to refuse service. They have the right to refuse service to whoever they don't want there. That's their prerogative.

This comment, however, is grossly misleading. While places of public accommodation can decline to serve or host individuals, they cannot do so in a manner that violates antidiscrimination laws. For example, the restaurant could not have lawfully turned away black, white or Asian-American diners because of race (ask Denny's).

Although federal laws and the laws in most states do not prohibit places of public accommodation from discriminating on the basis of "sexual orientation" or "gender identity," an El Paso civil rights ordinance does. Accordingly, restaurants in the city cannot lawfully discriminate against GLBT customers. Therefore, unless Chico's Tacos bans kissing by all diners -- which is highly unlikely -- then it has discriminated on the basis of sexual orientation and violated the ordinance.

The fact that the restaurant ejected all of the gay males -- even the three who did not kiss -- only bolsters the evidence that this incident was purely about discrimination. Also, the guards' alleged use of anti-gay epithets and the police officer's false assertion that homosexual conduct is illegal (see below) prove discriminatory motivation as well.

Does Texas Law Ban Gay and Lesbian Kissing?Another police distortion surrounds the responding officer's statement that he could arrest the men because Texas law bans "homosexual conduct." Most of reports correctly indicate that in 2003, the Supreme Court invalidated a Texas statute that prohibited homosexual conduct (see Lawrence v. Texas). That law, however, only prohibited oral or anal sex -- not kissing -- between two people of the same sex. Accordingly, the police officer was wrong to threaten the individuals with arrest for two reasons. First, Texas law does not ban same-sex kissing, and six years ago, the Supreme Court invalidated a state law that banned gay and lesbian sex.

Conclusion: Sue the restaurant and the police for clear violations of the law. The end.

Friday, July 10, 2009

I have decided to give a rotten tomato to the Southern Christian Leadership Conference -- the venerable civil rights organization founded by Dr. Martin Luther King, among others. The SCLC earns the award because it plans to remove Reverend Eric P. Lee, the president of its Los Angeles office, because he openly supports same-sex marriage and provided advocacy against Proposition 8 (California's constitutional amendment banning same-sex marriage).

SCLC: A History of Progressive AdvocacyThe Southern Christian Leadership Conference was founded on principles of equality and justice. Some of the organization's most notable and important historical moments include its sponsorship of important racial justice campaigns in Albany, Georgia, Birmingham, Alabama, and the Selma, Alabama voting rights movement. These events are iconic moments in United States history, and they were vital to the evolution of federal antidiscrimination law.

The Birmingham marches, for example, led to the arrest of King, black protestors, and scores of black children who stood up for justice. The infamous Bull Connor, Birmingham's "Public Safety Commissioner" and KKK member, turned police dogs and water cannons on peaceful demonstrators. After his arrest, King authored the Letter from a Birmingham Jail, one of his most detailed arguments for racial justice and peaceful protest.

The protests and the violent reaction to them by government officials in the South caused Kennedy to move rapidly towards the passage of the Civil Rights Act of 1964 (he had previously opposed broad civil rights legislation, including voting rights measures). This measure did more than Supreme Court rulings, like Brown v. Board of Education, to speed up the course of desegregation.

SCLC's Planned Removal of Lee: A Betrayal of Its Progressive PastThe SCLC's plan to remove Lee betrays the organization's rich history of progressive advocacy. Although the local Los Angeles chapter approved Lee's advocacy for same-sex marriage, Dexter Wimbush, the national organization's legal counsel, has demanded that Lee appear in Atlanta to explain why he failed to receive approval from national officials prior to his advocacy.

A New York Times article quotes Lee as stating that his support of same-sex marriage has "created tension in my life I had never experienced with black clergy. . . ." Lee, however, views same-sex marriage as a question of equality: "[I]t was clear to me that any time you deny one group of people the same right that other groups have that is a clear violation of civil rights and I have to speak up on that."

Lee has the support of his local chapter, which takes the position that each chapter acts independently of the national organization and that Lee did not need to consult the national organization prior to his advocacy. National officials have refused to comment on that specific issue.

GLBT Rights = Civil RightsThe plan to fire Lee is reflective of a broader tension within both the GLBT communities and communities of color regarding the relevance of race and sexual orientation. As Lee argues, many predominately white GLBT organizations in California failed to reach out to persons of color because they refused to consider the complexity of "liberal" voters. Furthermore, many of these groups lack racial diversity among their leadership. If they were more diverse, they would probably have greater success spreading their message across racial groups.

Racial justice groups also fail to realize that their opposition to GLBT rights contradicts the very notion of equal justice and ends up harming communities of color. As I have argued in numerous law review articles and on this blog (see links following this essay), the advocacy of GLBT rights represents a demand for equal protection and due process. Deprivations of equality and due process, by contrast, were an inherent aspect of racial subordination facilitated by law (and private violence). Accordingly, when communities of color take conservative positions on gay rights, they legitimate many of the same arguments and abuses that were used to justify and foster racial inequality.

Taking notice of this fact does not require anyone to equate race and sexual orientation. There are differences between "gay" and "racial" experiences, and the groups themselves do not have singular experiences. Nevertheless, civil rights law must operate with flexibility in order to account for new social problems. Even people of color do not suffer the same problems that they encountered in the past. Oprah Winfrey is not a slave, but certainly this does not justify racial discrimination against her. When people of color reject GLBT rights on the grounds that homophobia is not like racism, they imply that civil rights law should operate narrowly and rigidly - a position that, unfortunately, harms persons of color.

Furthermore, when people of color oppose GLBT rights, they validate discrimination against members of their own communities. The question of GLBT rights and persons of color, therefore, does not only involve one group hurting another, as Lee says. Instead, it also often means that one group is hurting itself.

King's Legacy and GLBT RightsFinally, Lee says that King would be "turning over in his grave" if he were aware of the plan to discharge him for embracing equal protection. I agree. Although King did not live long enough to consider the question of sexual orientation discrimination in contemporary terms, his wife, Coretta Scott King embraced, GLBT rights on many occasions prior to her death. She also supported same-sex marriage and civil unions, and she explicitly linked her support for GLBT rights to King's statement that "Injustice anywhere is a threat to justice everywhere. . . ."

Furthermore, while he was alive, King included Bayard Rustin, a black gay man, within his inner circle. Rustin was the principle architect of the 1963 March on Washington, and he was a close advisor and strategist for King. Reflecting the valid fears of this period in history, however, King did not allow Rustin -- a gay man, socialist, anti-war activist -- to take public credit for the march. Nevertheless, King's important collaboration with Rustin certainly complicates the notion that he would necessarily take positions endorsing anti-gay bigotry. Today's SCLC needs to revisit and learn from its own history and legacy.

Correction: This article has been corrected to delete language that described Rustin as an "atheist." Although some web references describe Rustin as an atheist, the weight of authority confirms that he was a Quaker.

The ABA has given Sonia Sotomayor a unanimous "well qualified" ranking. This is the highest possible ranking given to judicial nominees. Presidents and Congress have consulted the ABA judicial rankings since the 1950s. In 2001, however, President Bush rejected the ABA rankings, arguing that the organization was biased against conservatives, even though it gave Justice Alito and Chief Justice Roberts well qualified rankings (in addition to Justices Scalia, Rehnquist, Kennedy and O'Connor). Also President Reagan and President Bush I consulted the rankings.

ABA v. AFJPrevious commentary regarding Sotomayor (e.g. Jeffrey Rosen's articles) mentioned her reviews in the Almanac of the Federal Judiciary. The AFJ, which is not even affiliated with or sponsored by the federal judiciary, is woefully inadequate as a measure of a judge's quality. The AFJ reports the comments from lawyers who have appeared before a judicial nominee. Sometimes these comments reflect the "emotional" reaction of the lawyers. There are reported cases where disgruntled attorneys intentionally wrote bad reviews for judges in order to harm their reputations.

Also, in a previous blog entry, I exposed the gender bias in the AFJ's reporting of attorney comments. While lawyers described Sotomayor and Scalia as being well prepared and tough at oral arguments, the AFJ presented these traits as a negative quality in Sotomayor but as a highly positive quality in Justice Scalia. This result mirrors social stereotypes that stigmatize intelligence and strength in women.

The ABA, by contrast, interviews lawyers, law professors, and judges, and it assembles teams of law professors and attorneys to evaluate the candidate's legal writings. Lawyers who testify about their experiences before the judge have to specify with precision the reasons for their assessment of the candidate. This process allows the evaluators to root out positive or negative bias and to make the process as objective as possible. The thorough review process makes the ABA rankings exceedingly more reliable than the AFJ, which often reads like a glorified tabloid. Sotomayor's excellent ABA ranking makes it virtually impossible at this point for her opponents to build a valid case against her confirmation.

PS: Sotomayor received a "well qualified" ranking before she became a District Judge. She received a split "well qualified" and "qualified" ranking prior to becoming a judge on the Second Circuit. Only a minority of reviewers, however, found her "qualified," rather than "well qualified." "Qualified" is the ABA's second-highest ranking.

Thursday, July 9, 2009

Apparently, a Pennsylvania swim club kicked out kids from a day camp because they were black. In a poorly worded, but perhaps revealing, statement, officials said they feared the black kids would change the "complexion" of the environment.

The Nancy Pelosi-CIA-Waterboarding drama has come to life again. Earlier this year, House Speaker Pelosi said that the CIA misled her by not disclosing during a 2002 national security briefing that the agency was using "waterboarding" as an interrogation method. The CIA denied Pelosi's account of the meeting.

The use of waterboarding by the Bush administration generated intense criticism among domestic and foreign human rights and civil liberties organizations. President Obama has banned its use.

It is unclear what Pelosi's objection to waterboarding would have accomplished in 2002. At the time, President Bush and the Department of Justice contended that the use of waterboarding was lawful, which means Bush would not have reversed course even if Pelosi had objected. Also, the information presented at the meeting was classified, which precluded Pelosi from launching a public campaign to abolish use of the technique. Nevertheless, some Republicans have seized upon the diverging accounts from the CIA and Pelosi in order to raise questions about Pelosi's veracity and to accuse her of demoralizing the intelligence community.

Although this story subsided after it initally broke, it has resurfaced in light of recent developments. First, six Democratic members of the House Intelligence Committee have sent a letter to CIA Director Leon Panetta, which claims that Panetta recently told committee members that the CIA had withheld pertinent information from members of Congress for eight years beginning in 2001. The letter also demands that Panetta repudiate a statement from earlier this year that disagrees with Pelosi's contention that the CIA misled her. Panetta, through a spokesperson, stood by his previous position.

Second, a separate letter from House Intelligence Committee Chair Silvestre Reyes to ranking minority member Pete Hoekstra asserts that the CIA had "affirmatively lied to" members of Congress. Neither of the two letters from Democrats, however, indicate the specific "lies" or misrepresentations of the CIA. Furthermore, both letters were sent on the eve of Congressional debate over a pending intelligence bill. Republicans believe that the letters are politically motivated and intended to prop up Pelosi, who will probably face renewed scrutiny while Congress considers the intelligence bill.

Closing ThoughtsThe Republicans are probably correct to observe that the letters from Democrats are politically motivated. But -- this does not mean that the CIA has never misled Congress.

Expect a lot of grandstanding from members of both parties on this issue in the next few days. They will probably pay very little attention, however, to the merits of the intelligence bill. Unfortunately, the media will likely avoid having any in-depth discussion of the substance and merits of the proposed law as well. Currently, most of the stories on this issue focus exclusively or primarily on Pelosi and the CIA. Perhaps this will soon change.

Wednesday, July 8, 2009

Pentagon officials said soldiers who are correctly guessed to be homosexual will face immediate dishonorable discharge, unless they can prove they have killed at least 10 enemy combatants in a particularly brutal fashion.

Monday, July 6, 2009

During a recent interview with CNN, Mike Mullen, Chair of the Joint Chiefs of Staff, said he believes that President Obama should "move in a measured way" towards ending Don't Ask, Don't Tell. Mullen also said that he told Obama that before he decides to end the policy, he should consider "the impact on our people and their families at these very challenging times." Mullen, however, did not explain what he meant by "the impact" of DADT on "our people" and "their families" (and none of the possible meanings sounds good -- see below). Mullen's comments will probably add to the growing anxiety among GLBT activists concerning Obama's commitment to gay rights.

Mullen's "Measured" Stance Mirrors Position of Obama AdministrationMullen's guarded statements mirror positions that members of the Obama administration, including Obama himself, have taken. Last week, Defense Secretary Robert Gates stated that rather than moving to repeal DADT, the Obama administration was studying ways to make the policy more "humane" (e.g. declining to discharge individuals who do not voluntarily disclose their sexual orientation to military officials). Also, during the Bush administration and earlier this year, Gates said that the Department of Defense had not moved on DADT because fighting the wars did not leave enough time to address the policy.

In May 2009, White House staff edited WhiteHouse.Gov to indicate that President Obama supports repealing DADT in a "sensible way that strengthens our armed forces and our national security." Previously, the website contained a much longer statement explaining Obama's opposition to DADT. Furthermore, White House staff initially amended the language to state that Obama supported "changing" DADT. After complaints from GLBT activists, however, White House staff edited the website once again to state that Obama supports "repealing" rather than "changing" DADT.

Furthermore, during a recent meeting with GLBT rights activists at the White House, President Obama expressed his own support for a measured path:

[A]s Commander-in-Chief, in a time of war, I do have a responsibility to see that this change is administered in a practical way and a way that takes over the long term. That's why I've asked the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to develop a plan for how to thoroughly implement a repeal.

Obama comments are basically identical to the position that Mullen has espoused.

What Does Mullen Mean By "Impact on our people and their families"?Although Mullen's comments generally echo the sentiment of the Obama administration, it is unclear how he believes repealing DADT will "impact. . .our people and their families." If Mullen is referring to military personnel, then he is probably only thinking of heterosexual personnel. It is probably safe to assume that most "family members" of gay and lesbian personnel do not support them losing their jobs and therefore favor the repeal of DADT.

But if Mullen truly believes that repealing DADT could negatively impact heterosexuals and their families, then his thinking suffers in three major ways. First, Mullen seems to hold heterosexual soldiers and their families in low esteem. If troops have the fortitude to put their lives at risk, then repealing DADT should not cause them to have a meltdown. They are already serving with closeted gays, lesbians and bisexuals. Simply "knowing" the identity of those individuals who are brave enough to come out, will not imperil servicemembers or their families.

Second, Gates seems to discount the ability of the military to enforce its own rules. The military is a highly regulated machine, and its members' lives are subject to controls that are undesirable and even illegal in civilian settings. Despite the highly regimented nature of military life, Mullen repeats the standard position by DADT supporters which contends that having openly gay, lesbian or bisexual military personnel will overwhelm heterosexuals, rendering them unable to obey rules. It is unclear why Mullen and other military officials should not trust their own enforcement mechanisms on this issue. Once DADT is repealed, military personnel who cannot accept the change should face reprimand (and possible discharge). Those are the rules.

Finally, Mullen's comments place the well being of heterosexuals and their families above the constitutional rights of gays, lesbians and bisexuals in the military. Mullen's suggestion that repealing DADT will significantly impact military personnel and (especially their families) is baseless. Even if Mullen could prove "some" impact, it is not immediately clear why the comfort of antigay heterosexuals should have priority over the Equal Protection Clause. Certainly, the concerns of these individuals' family members cannot trump the Constitution. If Obama embraces this portion of Mullen's comments, he will do serious damage to his already shaky reputation among GLBT activists.

Thursday, July 2, 2009

Earlier this week, Senator Orrin Hatch (Republican, Utah) whined in an opinion essay (for Real Clear Politics) that the Senate needed more time to review the "large and complex record" of Supreme Court nominee Sonia Sotomayor. Perhaps Hatch and the other members of the Judiciary Committee could devote more attention to Sotomayor if they canceled a hearing, scheduled for next week, to investigate the College Bowl Champion Series (BCS). The upcoming hearing is a colossal waste of time.

Hatch, who sits on the Judiciary Committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, sought the hearing to determine whether the BCS violates any antitrust laws. Keep in mind that the Judiciary Committee must first approve Sotomayor before the process moves to the full Senate.

Although reviewing Sotomayor's record has supposedly stymied Hatch, he found time to write yet another essay (published in Sports Illustrated), which explains his theory of the possible antitrust issues related to the BCS. Hatch believes the automatic bid for the major NCAA conferences might violate the law. This sounds preposterous to me, but I am not an antitrust scholar. Neither is Orrin Hatch.

BCS Is the New Wasteful Obsession for CongressNext week's BCS hearing is the second to take place in Congress this year. In May, Representative Joe Barton (Republican, Texas) hauled BCS officials into the House to testify before the Committee on Commerce, Trade and Consumer Protection.

Barton has sponsored legislation that would prohibit "the marketing, promotion, and advertising of a post-season game as a 'national championship' football game" unless the victor was chosen through a playoff system. And if the NCCA fails to comply, Barton's proposal would allow the Federal Trade Commission to prosecute the organization for an "unfair or deceptive act or practice."

Apparently, the First Amendment means nothing to Barton. Neither does the need for serious legislation. Also, calling the victor of the BCS Championship game the "national champion" cannot deceive the public when the public already knows that the BCS does not utilize a playoff system. Barton, however, says that calling the victor the national champion is "patently deceptive" because a computer chooses the competitors. Barton's statement distorts the selection process that the BCS utilizes.

Furthermore, under Barton's logic, Major League Baseball violates consumer protection laws because it sponsors the World Series and calls the victor the "world champion." Many professional baseball teams exist outside of the United States, but the MLB world champions do not compete with any of them (except for the one Canadian team that remains a part of MLB). Even if baseball only existed in the United States, the MLB champion cannot accurately claim a "world" title for a geographically localized sport. In fact, doing so seems far more deceptive than picking a national champion under the BCS system.

Conservatives Sponsoring "Big Government"Despite the economic crisis, Barton apparently believes that the FTC should expend resources forcing the NCAA to select a champion in a way that the federal government deems appropriate. Perhaps Congress could hold hearings next year to redesign the uniforms worn by NCAA football teams as well.

The BCS hearings demonstrate that Congress continues to have an unhealthy fascination with sports figures and athletic organizations. Every year, some athlete makes the trek to Washington to deny (or fail to recall) using steroids. Steroid use by wealthy athletes is hardly a vital national issue that warrants intense congressional scrutiny. The manner that the NCAA picks its championship team also fails to warrant a hearing in Congress.

Finally, it seems extremely contradictory that Barton and Hatch, two "limited government" conservative Republicans, would support this wasteful and invasive process. But if hypocrisy disqualified people from politics, Washington would become a ghost town. Also, Barton and Hatch are lawmakers from Texas and Utah. The University of Texas and the University of Utah both believe that they received a raw deal from the BCS this year because they were not selected to play in the highly profitable and prestigious championship game. Barton and Hatch have discarded their purported conservative values in order to gain points with the folks back home and, possibly, to direct some cash to their states. Apparently, big government is not a problem for Barton and Hatch if it can win them some votes. Great!

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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